KULDEEP SINGH Vs. GAURAV AND ORS.

JUDGEMENT

(1.) NOTICES were issued to the respondents by way of publication. There is no representation on their behalf. They are proceeded ex parte.

(2.) PRESENT petition is instituted against Order dated 31.5.2014 rendered by learned Civil Judge (Junior Division), Indora in CMA No. 199/2011 in Civil Suit No. 119/2007.

(3.) PLAINTIFF made an application under Order 9 Rule 9 CPC alongwith application under Section 5 of Limitation Act. Plaintiff has given circumstances in which neither he nor his counsel could be present before the Court on 14.6.2011. He came to know about Order dated 14.6.2011 on 29.6.2011. Non -appearance was bona fide and not intentional. Application was contested by respondents -defendants. According to the defendants, plaintiff willfully did not appear before the Court and his counsel was not busy in Tehsil complex Indora. Application was barred by limitation. Trial Court framed issues on 8.11.2012. Plaintiff has appeared as AW -1. He led his evidence by filing affidavit Ext. AW -1/A. Respondent Surinder Singh appeared as RW -1 and filed his evidence by way of affidavit Ext. RW -1/A. Civil Suit was dismissed for default on 14.6.2011 when it was listed for recording evidence of the defendants. Plaintiff was pursuing Civil Suit diligently and could not be present on 14.6.2011 due to ill health. His counsel was busy in Tehsil complex Indora. He came to know about order dated 14.6.2011 on 29.6.2011. Thereafter, he moved an application under Order 9 Rule 9 CPC alongwith application under Section 5 of Limitation Act. It is not one of the cases where there is inordinate delay in filing application under Order 9 Rule 9 CPC for restoration of suit. Cogent and convincing reasons have been given for non -appearance of the plaintiff and his counsel on 14.6.2011. It was not necessary for the plaintiff to produce on record medical evidence when he has filed affidavit stating therein that he was ill on 14.6.2011. No evidence in rebuttal has been filed to prove that the plaintiff was not ill. He has recovered from the disease after one and a half month and thereafter moved application for restoration of suit, which was dismissed for default on 14.6.2011.